John E. Thiel Law Office, L.L.C., by Attorney John E. Thiel,
P.O. Box 7560, Appleton, Wisconsin 54912-7075, for the Respondent.

ORDER ON MOTION TO DISMISS COMPLAINT

On March 17, 2010, the Complainant, Pulaski Bus Drivers' Association, filed a
complaint
with the Wisconsin Employment Relations Commission alleging that the Respondents,
Pulaski
Community School District and Mel E. Lightner, had committed prohibited practices under
Sec.
111.70(3)(a)1 & 3, Wis. Stats., with respect to its issuance of a disciplinary suspension
to bargaining
unit member Mary Schroeder on March 1, 2010, alleging that the discipline was, in part, due
to
hostility toward Schroeder's protected, concerted activity as an officer of the Union. On May
1,
2010, the Complainant filed an Amended Complaint alleging an additional violation of Sec.
111.70(3)(a)4, Wis. Stats., growing out of the Complainant's request for documentary
material
relating to the discipline and the Respondents' subsequent demand that the Complainant
reimburse
the Respondents for costs associated with gathering and providing the documents.

On May 18, 2010, the Respondents filed a Motion to Dismiss both the original
Complaint
and the Amended Complaint. On June 9, 2010, the Respondents filed an Answer and
Affirmative
Defenses to the Amended Complaint. Pursuant to a briefing schedule, the parties submitted
written
arguments regarding the Motion to Dismiss, which were received by July 15, 2010.

No. 33037-A

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Dec. No. 33037-A

The Examiner having considered the parties' arguments, and based upon the
pleadings
and
attached exhibits in the record

NOW, THEREFORE, it is

ORDERED

That Respondents' Motion to Dismiss the allegations that the Respondents violated
Secs. 111.70(3)(a)1 and 3, Stats. by refusing to follow the contractual grievance
procedure is granted.
The remaining portions of the Amended Complaint alleging that the Respondents violated
Secs.
111.70(3)(a)1 and 3, Stats. by disciplining the employee due, in part, to hostility toward her
protected, concerted activity and that the Respondents violated Sec. 111.70(3)(a)4, Stats. by
charging
the Complainant for the costs of responding to its document request are not dismissed, but
are held
in abeyance pending completion of an underlying grievance arbitration proceeding.

Dated at Fond du Lac, Wisconsin, this 23rd day of July, 2010.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

John R. Emery, Examiner

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Dec. No. 33037-A

PULASKI COMMUNITY SCHOOL DISTRICT

MEMORANDUM ACCOMPANYING ORDER

ON MOTION TO DISMISS
COMPLAINT

In this case, the allegations of the Amended Complaint assert, inter
alia, that Mary Schroeder
was suspended for two days as a result of a traffic accident with her school bus and was
subsequently
required to submit to regular review of video tapes recorded of her performance as a bus
driver. It
is further alleged that the discipline was in part due to the Respondents' hostility toward
Schroeder's
protected, concerted activity, and that this action violated Sec. 111.70(3)(a)1 and 3,
Stats. It is further
alleged that the Complainants grieved the discipline, that the Respondents violated the
collective
bargaining agreement by refusing to follow the contractual grievance procedure in violation
of Sec.
111.70(3)(a)1 and 3, Stats., and further that the Complainant requested copies of documents
pursuant
to its investigation of the discipline and that the Respondents required reimbursement from
the
Complainant for the costs of gathering and providing the document, in violation of
Sec. 111.70(3)(a)4, Stats. As and for relief, the Amended Complaint seeks to have
the discipline
rescinded, Schroeder's personnel record to be expunged and that Schroeder be made whole
for any
losses occurred as a result of the discipline. The Amended Complaint also requests cease and
desist
orders against the Respondents for their prohibited conduct and that the Respondents be
required to
post any accompanying notices deemed appropriate by the Commission for the Respondents'
alleged
violations and pay the Complainants' costs and attorneys fees.

The Respondents' Motion to Dismiss asserts that the Amended Complaint fails to
state
a
claim upon which relief can be granted. It further asserts that considering the allegations of
the
Amended Complaint in the light most favorable to the Complainant, the pleadings do not
state a
valid cause of action and must be dismissed as a matter of law.

The Commission's standard of review for Motions to Dismiss is set forth in Wis,
Admin.
Code §ERC 12.04(f):

(f) To dismiss. Motions to dismiss shall state the basis for the
requested dismissal.
A motion to dismiss shall not be granted before an evidentiary hearing has been
conducted except where the pleadings, viewed in the light most favorable to the
complainant, permit no interpretation of the fact alleged that would make dismissal
inappropriate.

Here the allegations regarding the issuance of the discipline allege that the decision
was
based, at least in part, on hostility toward the employee's protected, concerted activity. This
is based
upon the allegation that she had caused a contentious grievance to be filed in the recent past,
which
upset the Respondents, and that in his investigatory interview the Respondent Lightner
allegedly
asked the employee about her Union activities and suggested that they may have contributed
to the
accident in question. The Complainant likewise asserts that the decision to bypass the
grievance
process by going directly to a Board hearing and the threat to show the

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Dec. No. 33037-A

Board the video of the accident was, in part, retaliation for the Complainant's protected
concerted
activity in refusing to agree to accept the discipline and waive the employee's grievance
rights. With
respect to the allegations regarding the Respondents' refusal to honor the Complainant's
document
request without being reimbursed for the costs of gathering and providing the requested
documents,
the Complainant asserts that this, too, was in retaliation for the Complainant's protected,
concerted
activity.

Where the parties have agreed to a contractual process for resolving disputes, the
Commission will defer disputes to arbitration as long as they meet certain criteria. The
Commission's criteria for deferral to arbitration are:

(1) The parties must be willing to arbitrate and renounce technical
objections
which would prevent a decision on the merits by the arbitrator;

(2) The collective bargaining agreement must clearly address itself
to the dispute;
and

(3) The dispute must not involve important issues of law or policy.
School
District of Cadott Community, Dec. No. 27775-C (WERC, 6/94).

The first two criteria have been established by the fact that the underlying dispute is, in
fact, currently
awaiting grievance arbitration and that the contract does address itself to the dispute, that
being just
cause for discipline. The Complainant's contentions that the discipline issued to the
employee, and
the Respondents' charging for the costs of provision of requested documents, was based in
part on
its hostility toward the specific exercise of protected rights, however are important issues of
law. As
such, they cannot be summarily dismissed without an evidentiary hearing to fully develop the
record,
nor can they be deferred to arbitration. Nevertheless, the Commission has recognized that in
cases
where there is potential overlap between the issues raised in the complaint, interference with
the
exercise of protected rights, and an underlying grievance arbitration proceeding, it is
appropriate to
hold the complaint in abeyance pending the outcome of the grievance arbitration. State of
Wisconsin Department of Corrections, Dec. No. 31384-B (WERC, 11/2/05) Here, the
underlying grievance, in which arbitration is pending, addresses whether the employer had
just cause
for disciplining the employee. Further, the record here reflects that the Respondents have, in
fact,
provided the requested documents, and that the only questions remaining are whether, and to
what
extent, the Respondents can charge for the costs of providing the documents. This question,
too, is
something that the arbitrator can address in issuing his award. To the extent that these issues
are not
resolved in the arbitration, the prohibited practice complaint process can address them later,
if need
be. However, in the interests of economy and the optimal allocation of resources it makes
sense to
await the resolution of the arbitration process before moving forward with the prohibited
practice
complaint.

The allegation that the Respondents violated Secs. 111.70(3)(a)1 and 3, Stats. by
refusing
to follow the contractual grievance procedure is dismissed. This allegation is based upon

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Dec. No. 33037-A

Lightner's letter to Union Grievance Chair Lois Selle on March 9 responding the
grievance. In that
letter, Lightner informed Selle that the Board of Education would be hearing the grievance
and that
part of the employer's presentation would include a viewing of the video tape from the
employee's
bus recording the accident. Article 4, Section 4.04 of the contract specifies that grievances
are to be
taken up orally with the employee's supervisor at Step 1, are to be presented to the
supervisor in
writing at Step 2, are to be presented to the District Administrator at Step 3 and, if not
resolved at
Step 3 may be presented to the Board at Step 4, either within 10 days of the Administrator's
Step 3
response, or where there is no response, within 15 days of the presentation of the grievance
to the
Administrator. The record reveals that here the Administrator, acting in the capacity of
supervisor,
issued the discipline. Thus the Step 2 submission went to the Administrator, Lightner.
Because he
was also the Administrator, however, the filing also had the effect of a Step 3 submission.
That being
the case, Lightner's response to Selle was, in effect, a recognition that the next step in the
process
would be to present the grievance to the Board and he apparently assumed that the Union
would do
so rather than drop the grievance at that point. Further, his reference to presenting the video
was not,
in my view, a threat, since such a review would be a logical aspect of the Board's decision
making
process. Thus, Lightner did not violate the grievance procedure by informing Selle on March
9, 2010
that the grievance would be heard by the Board and that the video tape would be presented at
the
hearing. This action did not, therefore, violate Secs. 111.70(3)(a)1 and 3, Stats. and that
cause of
action is dismissed.